Tuesday, 12 January 2010

Perry and Video Streaming: The USPC Order in Full & Day One in Review

The Special Perry page on the California Supreme Court site now has the United States Supreme Court Order which does relatively little to shed light on this decision. You can view the original file here and I've reproduced it at the bottom of this post. There was a dissenting opinion by Justice Breyer (pictured right). Now if I was a US law academic (or even student) that would be enough to say but for us Brits, a little more explanation is needed. Just Breyer was appointed by the Clinton Presidency back in 1994. He's generally viewed as being more liberal and was himself born in San Francisco. Breyer seems to be saying, yes we need more time to consider this but while we consider this, we should not be imposing a ban.

The Advocate wesbite has posted a summary of the discussions yesterday (it got too late into the night to keep following the Twitter updates over here). This summary can be viewed here. Perhaps one of the interesting aspects of the case is that the plaintiffs (yes they still use that term in the US) are represented by the strongly conservative Ted Olson who introduced the case by stating: “This case is about marriage and equality,” he said. “Plaintiffs are being denied both the right to marry, and the right to equality under the law. The Supreme Court of the United States has repeatedly described the right to marriage as "one of the vital personal rights essential to the orderly pursuit of the happiness of free men.’” Of course, as we're increasingly seeing in the UK, and as Matthew Parris long argued, the case for gay marriage is a conservative one. What can be more conservative? The Advocate also notes Judge Walker's repeated line of questioning was 'why the courts shouldn’t abstain from the issue and allow marriage equality battles to be played out on in the political process'. The Advocate adds that Olson replied “Because that is why we have courts,”. The Advocate strangely omits, what those who did follow on Twitter will recall, which is there was a long pause before this response. This might seem like small beer but I thought it significant. Olson should have been able to answer such a fundamental question without hesitation and his failure to do so further dented my confidence in this case succeeding. Given my record on predicting the turns in this case, that conclusion bodes well for US GLBT activists!

I also learn from The Advocate that later on 'marriage historian Harvard University professor Nancy F. Cott took the stand, speaking about the fluidity of the definition of marriage and the discrimination that minorities have historically faced in attaining such rights. “Only those who cannot marry their partner of choice - or marry at all - are aware that the ability to marry is an expression of one’s freedom,” she said'. Celeb watchers will be interested to note that Dustin Lance Black was present in the gallery. Black was responsible for the Milk screenplay and has been very active in the equality cause. Others might recall his entanglement last year in some barebacking personal sex photos (and a video that never showed up) posted on Perez Hilton's website (since removed following outcry's from the gay community).

Upon consideration of the application for stay presented to Justice Kennedy and by him referred to the Court, it is ordered that the order of the United States District Court for the Northern District of California, case No. 3:09-cv-02292, permitting real-time streaming is stayed except as it permits streaming to other rooms within the confines of the courthouse in which the trial is to be held. Any additional order permitting broadcast of the proceedings is also stayed pending further order of this Court. To permit further consideration in this Court, this order will remain in effect until Wednesday, January 13, 2010, at 4 p.m. eastern time.

Justice Breyer, dissenting.

I agree with the Court that further consideration is warranted, and I am pleased that the stay is time limited.

However, I would undertake that consideration without a temporary stay in place. This stay prohibits the transmission of proceedings to other federal courthouses. In my view, theCourt’s standard for granting a stay is not met. See Conkright v. Frommert, 556 U. S. ___, ___ (2009) (slip op., at 1–2) (Ginsburg, J., in chambers). In particular, the papers filed, inmy view, do not show a likelihood of “irreparable harm.”

With respect, I dissent.

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